from the what-a-neat-little-trick dept

This is easily one of the best responses to copyfraud I've ever read. Sure, Jay Leno is a pretty easy target for a roast, but musician Brian Kamerer does a brilliant job of taking him to task over a bogus YouTube takedown. I strongly suggest reading the whole thing, but here's the short version of what happened.

A few years ago, Brian helped a friend, who was running for mayor, create an intentionally silly campaign jingle and commercial, which they uploaded to YouTube. Two years later, they heard from another friend that the video had appeared on the Jay Leno Show as part of a segment about local campaign commercials. They just got a kick out of it, and moved on—until now, another three years later. Brian discovered that the YouTube video had been taken down on a copyright claim... by NBC (most likely as the result of a ContentID match as NBC uploaded old episodes into the system). So Leno mines the internet for material to air on his show—without permission or even the courtesy of letting them know—and then, years later, the network claims ownership of that material and accuses the actual creators and copyright holders of infringement. Brian is unimpressed, to say the least—and even supplies a script for how he imagines things went down:

JAY LENO

Hey remember those loser kids, we played their bit once, remember those guys? Let’s get em.

WRITER

What? Who? Why?

JAY LENO

Those guys, we took their video about three years ago and played it, I loved that song, remember?

WRITER

Oh yeah, sure, I remember those guys. So, what is it you want to do to them?

JAY LENO

I want to have the boys at NBC say that we own the video, so that if they try to watch their video on YouTube, they won’t be able to, and it will look like they stole the video, like Carlos Mencia!

WRITER

Or we could just leave those two nice boys alone. After all, you loved that song, remember?

JAY LENO

You’re fired! Secretary! Get me someone who has the balls to frame these two unknown assholes, so that eventually their work will be blocked on YouTube! And I need fifty more classic cars!

He's kidding of course—he knows that's not how it really happened. The real problem is that the system is broken: the law favors the accuser and permits this kind of copyfraud, giving NBC absolutely no incentive to narrowly target its takedown efforts. But Brian, quite reasonably, points out that he's not interested in excuses—everything that happened revolves around the public face of Jay Leno, and he sees no reason that Leno shouldn't bear the blame.

I know you’re reading this going, “Brian, you don’t understand! It’s not me, it’s just some NBC internet robot that scans YouTube videos and then compares the videos to the vast NBC library and just blocks the YouTube videos that match up, because the robot assumes the video has been stolen. Besides, you don’t own anything on YouTube! Don’t be mad at me, funny man Jay Leno! I liked your video! It’s the robot’s fault. The robot fucked up.”

Don’t hide behind NBC on this one, dude. And don’t blame YouTube. And forget about the robots. I’m not talking to the robot now. I’m talking to you, Jay Leno. Where does the buck stop on The Jay Leno Show, if not with Jay Leno himself? The buck stops with you Jay.

As more people fall victim to copyfraud—including this process whereby a TV network launders your copyrights into their own—and tell the story publicly (and entertainingly) as Brian has done, the aggressive entertainment companies are going to have a harder time recruiting stars as mouthpieces for the anti-piracy cause. Increasingly, they are going to see their own artists rebelling against their bogus takedowns and over-enforcement, as some already are. Combine that kind of pressure with transparency efforts like Google's newly available takedown data, and eventually something's got to give—starting with any remaining shred of public respect for copyright law.

Re: I'm expecting this

In addition to the copyfraud this case it's a case of THEFT plain and proper because the thief (Jay Leno/NBC) removes the original owner from having access to their own property.

also, i could easily add willfull commercial copyright infringement by Jay Leno/NBC to the list of claims, because by removing access to the original material it might prompt some of the users to search and watch the video of Jay Leno's show on NBC's site and that video is accompanied with NBC's ads.

Ads => money for NBC => commercial usage
=>
willful commercial copyright fraud => according to MAFIAA accounting = lots of $$$$ in damages for EACH time that the video clip is played on the infringer's site (i.e. NBC's site)

Re: Re: I'm expecting this

Theft of property? No, but it is censorship and a violation of their copyright. If the copytrolls can't use theft to describe infringement, where do we get the right to make the same fallacious claim that we chastised them for?
If they can't call it theft because it isn't, then we can't call it theft for the very same reason, because it's not theft. They still have their master copy (at least they should if they were smart). You're justifying the same terminology and backwards reasoning the trolls use. In essence, you're acting just as badly as they are.

The only thing that might even come close to theft would be NBC claiming ownership of the copyright that applies to that video, but even that is a stretch.

Re: Re: Re: I'm expecting this

It is a stretch, but one that the media companies wouldn't hesitate to claim if the situation was reversed. They have essentially deprived the creator of their right to control their "property," as the media companies would consider it.

he is no different to the execs in the entertainment industries. full of themselves when they can and are bullying people, full of shit when there is any sort of kickback, putting someone else in the firing line. only guts they have are the ones that keep hitting them on the knees!!

Sue Sue Sue

Why not sue Leno personally for copyright fraud , even if it is only going through small claims court so that the costs are not astronomical, a mark on his record like that would take his fear of sharing and put it in it's proper place.And for once the headlines could support the content owners and not the big studios. He would probably be prepared to pay millions for the case to go away but stay strong he has said a lot against copyright thieves , let him suffer the same way he has called for others to suffer.After a few offer and a lot of negative advertising accept his offer of a settlement.Leno is a joke always has been and always will be, and i don't mean that in a good way either.

Hitchiker's guide

NbC stole that idea from the Hitchiker's guide to the galaxy:
. The simplistic style is partly explained by the fact that its editors, having to meet a publishing deadline, copied the information off the back of a pack of breakfast cereal, hastily embroidering it with a few footnotes in order to avoid prosecution under the incomprehensibly tortuous Galactic copyright laws. It is interesting to note that a later and wilier editor sent the book backwards in time through a temporal warp and then successfully sued the breakfast cereal company for infringement of the same laws.

30000 dollar gold toilet

"He should issue a takedown on the clip that used his jingle and then launch a lawsuit for distributing copyrighted material for a few million or the ad money that nights show made and jays wages and everyone else form the show."

Comcast owns NBC I think, does that mean that all the production houses that are tied to NBC also have their own telecom company in-house? And do they have to get a court order to reveal the IP addresses of people on their service? Or does this only matter when the company is not in-house and requesting Comcast to turn over their customers?

Its been bugging me for a while, and this story of NBC just made me want to ask it.

Sue sue sue

why only 200x the going rate, sue for all of the previous and possible future earnings and all the other reasons including the fact that this is seen as theft by the court etc,lets say 7 million for all of this to go away Leno. Fluck i hate typing the name Leno it feels like i am cursing :)

If "copyfraud" makes people feel good, even though virtually all (note: not all, but certainly the vast majority) as no more than an error/mistake, then those who choose to use "theft" should be free to do so without being lambasted here as legal dunces. After all, "fraud" is a legal term as well.

The more apt term, if one must try to denigrate at every opportunity everything associated with copyright law, should be "copyerr" or, perhaps, "copyerror".

Re:

Good point. Words matter. However, the story is not just about the error of the ContentID system pulling down material incorrectly... it is also about the willful use of material from "the Internet" whose copyright was "obviously" held by "someone".

When an individual does this to a corporation, the word used to describe the action is "theft". When a big corporate entity does it to an individual, the words used are: "We are big and you are small. You know our lawyers will crush you if you try to seek compensation. Besides, the exposure benefits you. So get over it."

Re:

Though I have perhaps not always held myself strictly to this, my issue is not so much with the choice of the word 'theft' but with the actual attempt to conflate infringement and stealing.

For example, I love the famous quote: "Good artists borrow, great artists steal."

Stealing is not truly the right word, but it was a lyrical choice. In fact it is used there to mean making something "your own" by adding to it - not by taking it away from someone else. The implication is not that copying is equivalent to theft, even though that's the choice of words, and I don't think anyone could see it that way.

But when someone says "you pirates just love stealing movies" then the implication is very much that copying is somehow depriving another person of something. Indeed, people are happy to explicitly say stuff like "downloading a movie is no different from stealing a DVD" - and that is bullshit. That's what I take issue with.

As for "copyfraud", I think it is far more accurate than calling piracy theft. Theft means deprivation, but infringement involves no deprivation. Fraud means misrepresentation, which absolutely is involved in everything we call "copyfraud".

Re: Re: Re:

The reason they do this is because there's an impression that infringement is not as bad as theft, or that infringement is okay, even though they are both illegal. Infringement just doesn't sound villainous.

But it's important to point out the difference because in a court of law, they are handled very differently. Monetary damages for infringement are significantly worse than for theft.

Re: Re: Re: Re:

Which is ironic since the infringement isn't about loss of money or property at all. It's about not getting permission. I can violate the copyright on a work that has little or no commercial value and it's considered the same as what we would jokingly call "felony interference with a business model."

Re:

No. Just no.

Was the original artist attributed by the Jay Leno show? IF the answer is no, then this is malicious misrepresentation over a copyright. That is the very definition of IP fraud (or copyfraud, in this case).

Re:

Words matter, but based on the legalese in DMCA notices (the usual method of takedown), there is technically perjury going on. "Copyperjury" doesn't have quite the same ring to it, though. Perjury is a fraudulent activity, whether that's true in legal jargon or not, so the term is not that far off.

I agree that in the case of robot false positives, the term doesn't really apply.

Re: Re:

Words matter, but based on the legalese in DMCA notices (the usual method of takedown), there is technically perjury going on.

Heh, funny, we were just discussing this - but actually, there isn't. (Well, in this case there was no DMCA notice anyway since it was just ContentID or YouTube's takedown tool I assume - but even assuming there was...)

The DMCA is sneakily worded. You will notice that "penalty of perjury" is not at the beginning of the sworn statement. It's at the end, right before the part where you say you are "the copyright holder or authorized to act on behalf of the copyright holder of the allegedly infringed work" (forget the precise wording). Basically, the wording is structured like this:

[Swear on Good Faith Belief] - that the targeted work is infringing
[and, on penalty of perjury,] - that I hold the rights / am authorized on the work that is being infringed

So in a situation like this, where the "allegedly infringed" work is the Jay Leno show, NBC would not invoke the penalty of perjury. In fact they could basically send a takedown to absolutely anything they wanted, claiming it infringed on Leno, and all they would be violating is the "swear I have a good faith belief" part - not the "swear on penalty of perjury" part. And it's a hell of a lot harder to challenge someone on a "good faith belief" because the law basically has to take their word for it unless you can show substantial evidence that they had specific reason not to believe the work was infringing.

Imagine how NBC would respond if the shoe was on the other foot and somebody did the same thing to them. Why should people go out of their way to protect NBC's property while they not only disregard others' but brazenly claim ownership of something which doesn't belong to them?

Copyright?

I see the word "copyright" thrown around a lot. Was this clip actually copyrighted by either party or simply uploaded to YouTube. Does uploading a video to YouTube legally protect a work without going through the actual copyright process?

I agree that Jay Leno is the "face" of the show (and they are always an easy target for folks who like to complain without doing any real homework), but is he actually searching YouTube for clips to use or is it more likely a staffer. Also, would it really be Jay's job to check out the legalities of using the clip or more likely a staffer from their legal group.

Re: Copyright?

"...the actual copyright process"?

It's my understanding that the creator/s of a work automatically own the copyright unless they assign it to someone else.

And anyway, aren't you missing the point? Regardless of whether or not Jay's a nice guy, it's NBC who are claiming copyright infringement - of a work they didn't create, and which they used without the creator's permission.

Re: Copyright?

Also, would it really be Jay's job to check out the legalities of using the clip or more likely a staffer from their legal group.

I don't think it is really Jay's responsibility. It should be the responsibility of the network and the producers though.

But the point of focusing on Jay here is that Jay is the public face around which this whole thing revolves. It was on Jay's show. It is because the video aired on Jay's show that this video was flagged by content id. If it wasn't for Jay, this guy's video would still be there.

Re: Copyright?

"is he actually searching YouTube for clips to use or is it more likely a staffer"

He was the one, on screen, who showed the clip to millions of people. How he got it is irrelevant. Yes, legal should have cleared it, but he is the one performing the action. He may have assumed that some staffer did the foot work, but that is an issue of trust between him and NBC.

Phony copyright claims

I had my own experience with Fox, AP on phony take down claims. Back when YouTube was FUN, I posted hundreds of videos - some originals of my own, some from NASA which are public domain and some Bob Dylan promo clips like "Beyond Here Lies Nothing". Over 300 videos that got a reasonable amount of attention for a little guy from PEI.

It was an enormous amount of effort and fun and represented more than 2 years work, especially the original material.

Then Fox claimed cell phone footage of the riots in Tehran, taken by people in the riots, which I got from LiveLeak - again not Fox video since those guys don't leave the safety of their offices.

Then after Dylan decided he'd sold enough copies of his new CD, he had Web Sheriff take down his video. It all happened in a few days and I couldn't keep up with 3 strikes and lost my YouTube account - and all that work. I fought back for almost a year and then gave up. I have my own video site now but don't post as much since it's flash not H.264.

Taught me good lesson - only post original content. Even those guys lost that battle with Leno.